Packwood v. State
24 Or. 261
Or.
1893
Check Treatment
Mr. Justice Bean

delivered the opinion of the court:

1. That the affidavits for a change of venue in the justice’s court presented sufficient grounds for a change of the place of trial, is too clear for argument. It is an ancient maxim, and one founded on the most obvious principles of natural right and justice, that every litigant is entitled to a hearing and trial before a fair and impartial court or tribunal. This principle finds expression in our statute by the provisions for a change of venue when the court or judge is so prejudiced against the party making the motion that he cannot expect a fair and impartial trial before such court or judge: Sections 45, 274, and 1222, Hill’s Code. These provisions of the statute should receive a broad and liberal, rather than a technical and strict, construction, and the courts ought not to be too astute in discovering some refined and subtle distinction to avoid their operation, for, as was said by Mr. Justice Graves, “The immediate rights of the litigants are not the only object of the rule, but sound public policy, which is interested in preserving every tribunal appointed by law from discredit, imperiously demands its observation”: Stockwell v. Township Board of White Lake, 22 Mich. 349. Indeed, the sufficiency of the facts stated in the affidavits is not seriously questioned, but the contention for the respondents is (1) that the affidavits are defective in sub*263stance because they do not state that the motion was not made for the purpose of delay; and (2) the statute does not provide for or authorize a change of venue in a criminal action for a misdemeanor in a justice’s court. The affidavits are clear to the effect that the justice before whom plaintiffs were arraigned for trial had prejudged the the case, and that his interest and personal connection with the controversy about the title to the land, which was the only matter in dispute, rendered it improbable, if not impossible, for plaintiffs to obtain a fair and impartial trial before him, and hence was a sufficient ground for' a change of venue. To hold that in such a case, where the motion is made in good faith, the affidavit is fatally defective because it does not also state that the motion is not made for the purpose of delay, would be sacrificing substance to form. An application for a change of venue must, indeed, be made in good faith and not for the purpose of delay, but that may appear as clearly from the facts set forth in the affidavit as from any positive statement to that effect, and, when it does so appear, the affidavit is, in our opinion, sufficient.

2. By section 2131 of Hill’s Code it is provided that “A criminal action in a justice’s court is commenced and proceeded in to final determination, and the judgment therein enforced, in the manner provided in the Code of Criminal Procedure, except as in this act otherwise specially provided.” As no provision is made by the Code of Criminal Procedure for a change of the place of trial in a misdemeanor (section 1222, Hill’s Code), it is argued that a justice’s court has no authority to grant such change. But the provision-above referred to, concerning the procedure in criminal actions in a justice’s court, is section 78 of the act to regulate the civil and criminal procedure in justices’ courts, to which section 2078, Hill’s Code, was added by the act of December 19,1865. By this latter section it is provided that a justice may change the place of trial, on *264motion of either party, when it appears from the affidavit of such party that the justice of the peace is so prejudiced against him that he cannot expect a fair and impartial trial before said justice. This provision, from its language, would seem applicable to either a civil or criminal action, and is, we think, one of the exceptions referred to in section 2131, and was intended and designed to authorize a justice of the peace to change the place of trial in any action, civil or criminal, before him. Otherwise there is no provision of law for a change of the place of trial in criminal actions in a justice’s court, as that court has jurisdiction only of certain misdemeanors; and although a justice may be wholly disqualified from hearing the cause by reason of the provisions of section 913 of the Code, or by being so prejudiced against the defendant as to prevent a fair and impartial trial, it must either proceed before him or be discontinued. Such a construction of the statute would often result in manifest injustice and wrong, and ought not to be adopted if it can be reasonably avoided without doing violence to the express language of the statute. It seems to us, from the section of the statute above cited, that the justice of the peace was authorized by law to grant a change of venue in the case now under consideration, and that the affidavits upon which the motion was based constituted sufficient grounds for such change, and that it ought to have been granted.

It follows that the judgment of the court below must be reversed and this cause remanded to the circuit court with directions to that court to reverse the action of the justice’s court and remand the cause with directions to grant the motion for the change of venue. Reversed.